Big blow to ICC as final Kenya case thrown out

By Anjli Parrin

The International Criminal Court has suffered a major blow as the final case in an investigation into crimes against humanity committed in Kenya in post-election violence eight-years ago was dismissed.

A majority of the three-bench Trial Chamber yesterday threw out the charges against Kenya’s Deputy President William Ruto and former journalist Joshua Sang. They held, in a ruling on a “no case to answer” motion, that there was inadequate evidence to link the two to a “network” or a plan to commit the violence.
Responding to the decision, ICC prosecutor Fatou Bensouda tweeted that the “case against Ruto et al was eroded by perfect storm of witness interference & politicisation.” She alleged that the intimidation of witnesses was “methodical, far-reaching, & exceptionally well-resourced.”
President of the International Federation for Human Rights, Karim Lahidji, also blamed witness interference for the collapse of the case. “The persisting impunity in Kenya prevails over accountability and continuously fails the victims of the atrocities committed during the post-election violence,” he said.By contrast, Ruto tweeted, “God is great.”
This decision can still be appealed, and the prosecutor or national courts can still bring further charges because the decision was vacated without prejudice.
Ruto and Sang were accused of a role in the violence between December 2007 and January 2008 triggered during a tense election. Some 1,133 people were killed and hundreds of thousands displaced.
Ruto was accused of being an indirect co-perpetrator to murder, deportation or forcible transfer of population and persecution rising to the level of crimes against humanity, and Sang was accused of having otherwise contributed to these crimes.
The dismissal of the case follows the suspension of a similar case by the prosecutor against President Uhuru Kenyatta 16 months ago. Again there were allegations of witness intimidation. Both men were on opposite sides in the election violence.
Failure to prove network or plan
The Trial Chamber based its decision around the failure to prove the existence of a “network” that carried out a common plan to commit the violence.
This is necessary to prove that they had some form of “organisational policy”, to fulfill the requirements for a crime against humanity, under article 7(2)(a) of the Rome Statute.
The prosecutor argued that the “network” consisted of three tiers, with Ruto at the head, and was “supposed to have largely exploited existing social structures and customs within traditional Kalenjin society.” Ruto is a member of the Kalenjin ethnic group.
To prove its case, the prosecution stated that a network and common plan was shown through:

1. Three preparatory meetings held at Ruto’s house prior to the elections
2 Training of Kalenjin youth
3 Obtaining firearms to carry out the violence
4 The similar nature and pattern of the attacks, which included indications of prior planning by people closely linked to Ruto
5 A subsequent cleansing ceremony in Nabkoi Forest.
The Hague-based judges looked at the evidence provided for each of these allegations individually, finding that either there wasn’t enough information to link Ruto or Sang to the events or that it didn’t demonstrate the existence of a network or common plan.
For a no case to answer motion to succeed, the court must believe that there is no evidence upon which “a reasonable [chamber] could convict” the defendants. However, “questions of reliability or credibility” are not considered, except for in cases where the evidence “is incapable of belief”.

Real decision happened in February
The collapse of this case seemed likely since at least February this year, when the ICC Appeals Chamber made a decision about the application of a specific rule of procedure related to the admission of witness evidence.
It ruled to reverse an earlier decision, which would have allowed the admission of prior recorded testimony. In practice, it meant the ICC prosecutor was no longer able to use testimony from five witnesses. It was a significant loss to the strength of the prosecution’s case, which relied almost exclusively on witness testimony.
Rule 68 of the ICC’s Rules of Procedure of Evidence concerns the use of testimony recorded before trial as evidence. Before the rule was amended, prior recorded testimony could only be used as a substitute for live testimony at trial in cases where both the prosecutor and defendant had the opportunity to examine the witness at the time of the recording, or when the witness didn’t object to it being used and was present to be cross-examined at some point during the proceedings.
In November 2013, the ICC Assembly of State Parties amended and expanded Rule 68. Prior recorded testimony is now permissible if it comes from a person who has been subjected to interference (for example, threats or intimidation), or from someone who later died or is presumed dead.
But, because this change occurred after the Kenya cases began, the Appeals Chamber ruled that it could not be applied to this case, as doing so would be detrimental to the defendants.
This decision effectively destroyed the prosecution case. For example, evidence from two of the three witnesses whom the prosecution had wanted to use to show that Kalenjin youth were trained to carry out attacks was now inadmissible following the February decision.
Further, the remaining witness, on cross-examination, admitted he got information about the training from a report prepared by one of the other two witnesses whose testimony was thrown out.
Evidence of obtaining firearms also relied on testimony excluded by the February decision. This left the evidence of only one other witness, which the Trial Chamber held could not be corroborated. Information about alleged “local implementation meetings” that would link members of the “network” to the Kalenjin attackers on the ground was also connected to prior recorded testimony that could no longer be used.

Witness intimidation charges
The rule changes were in part brought about by allegations of witness interference. During the course of the trial, 16 of the prosecutor’s original 42 witnesses withdrew cooperation or disappeared.
Three people – Walter Barasa, Paul Gicheru and Philip Kipkoech Bett – are being tried by the ICC for alleged witness intimidation and corruption.
In yesterday’s ruling, Judge Chile Eboe-Osuji stated that while there was no evidence at the moment linking either Ruto or Sang to witness interference, should there be a finding that this has occurred, it would create a more “onerous outcome” for them. “At a minimum,” the Judge stated, “such evidence may afford the basis for an inference… that there is a case for the accused to answer.”Since coming to power, the government of Kenyatta and his deputy, Ruto, has mounted a vigorous campaign against the ICC’s intervention in Kenya’s affairs.
In October 2013, the African Union, at Kenyatta’s behest, went to the UN Security Council asking for the ICC’s Kenya cases to be deferred on the grounds that they posed a threat to peace and security in Kenya.

Kenyatta, with the support of AU leaders, has repeatedly accused the ICC of exclusively focusing on Africa – an issue that arguably helped Kenyatta and Ruto win the 2013 elections, even though they were both indicted. In late January, Kenya successfully got the AU to adopt a non-binding resolution to withdraw en masse from the ICC.
The irony, not lost on human rights campaigners, is that it was African countries that had been at the forefront for pushing for the establishment of the ICC – a relationship that has since soured